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State v. Montalvo

March 24, 1995

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JORGE MONTALVO, STACIE SCOTT, *FN1 MARK VAN RIPER AND DENNIS VAN RIPER, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Warren County.

Approved for Publication March 24, 1995

Before Judges Michels, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

STERN, J.A.D.

Pursuant to leave granted, the State appeals from an order of the Law Division, entered on February 10, 1994, granting defendants' motion to suppress. The motion Judge concluded that a Washington Township police officer lacked jurisdiction to conduct a search in neighboring Washington Borough. We reverse.

I.

Early in the morning of August 28, 1993, Patrolman William Beck of the Washington Township Police Department was dispatched to the Bagelsmith Store in Washington Borough, a contiguous municipality. Beck was directed to answer the call because of the unavailability of Washington Borough police officers who were all "tied up" on another matter. The dispatcher told Beck he had received a report of a "suspicious vehicle in the parking lot of the Bagelsmith" Store and that "someone was burning something outside of the vehicle." Beck was the only police officer to have been dispatched at the time and arrived on the scene at 3:20 a.m.

At that time, the Washington Township and Washington Borough Police Departments had a long-standing practice of covering for each other when necessary to perform police duties. According to the testimony of Washington Borough Police Chief Steven Speirs, the two municipalities had a mutual assistance "agreement" at the time in question, and the two police departments "worked very closely together, almost like one department." The two municipalities were also then in the process of enacting agreements and reciprocal ordinances to implement this policy. The Township had adopted its ordinance on June 15, 1993, over two months before Beck responded on August 28, but its effective date was dependent upon adoption of a similar ordinance by the Borough. Therefore, the ordinances both took effect upon the adoption of the Borough's ordinance on September 7, 1993, ten days after the conduct in question.

After hearing the evidence presented on a motion to suppress, the Law Division Judge determined on January 24, 1994, that Beck could "reasonably conclude in an objective way ... that criminal activity may be afoot and that the persons [Beck was] presently dealing with may be armed and dangerous." The Judge also found that, based on defendants' conduct after Beck arrived, the officer had the right to direct the occupants of the vehicle to exit the car, to conduct a Terry search of the car for weapons, and to seize containers which then came within his "plain view." The Judge, thus, denied the motion to the extent it was premised "on the grounds that the police lacked probable cause." *fn2 After hearing further argument, however, on February 10, 1994, the Judge granted the motion "on the grounds that the police lacked jurisdiction to search" the car.

In light of the position of the parties before us, including particularly the absence of a motion for leave to cross-appeal and any argument addressed to the validity of the search from a constitutional standpoint, we proceed on the basis that the trial Judge properly concluded that there was probable cause for the search. R. 2:11-3(e)(2).

II.

The propriety of the suppression order, therefore, turns on the Judge's determination that Patrolman Beck lacked the statutory authority to take the action he did outside of Washington Township. The Judge concluded that in the absence of mutual aid ordinances adopted by Washington Borough and Washington Township, Officer Beck had no authority to take the action he did in the neighboring Borough. Our analysis of the applicable statutes, however, leads us to conclude that no ordinance was necessary to implement a mutual aid policy in the contiguous municipalities.

N.J.S.A. 40A:14-152 provides "the powers" of police officers within the municipality which employs them. But it is clear that the Legislature contemplated that police officers would often have to act beyond their traditional jurisdiction. For example, N.J.S.A. 40A:14-152.1 provides that:

Notwithstanding the provisions of N.J.S. 40A:14-152 or any other law to the contrary, any full-time, permanently appointed municipal police officer shall have full power of arrest for any crime committed in said officer's presence and committed anywhere within ...


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